Article 16 of the United Nations Charter on Human Rights, which was released on 10 December 1948 states that men and women, barring limitations, have the right to marry and are entitled to equal rights in marriage. Section 377 of the Indian Penal Code was introduced in 1861 during the colonial era to prosecute those who engaged in homosexual activity, those found guilty would be sent to jail for 10 years at least. On the 6th of September 2018, the Court struck down the colonial-era law which criminalized homosexuality.
The Supreme Court of India is holding a landmark hearing on legalising same-sex marriage, which started on 18 April 2023, led by Chief Justice of India, DY Chandrachud.
The Solicitor General of India, Tushar Mehta, speaking on behalf of the government argued that a day would come when even people who are in incestuous relationships would want a legal status to defend it. “Why this restriction, who are you to decide with whom?” Mr. Mehta argued.
Student groups from 36 Indian law schools collectively condemn and stand in solidarity against the BCI's "regressive, ignorant, and harmful " Resolution on marriage equality. #LawStudentsAgainstBC #samesexmarriage pic.twitter.com/HvxA6bbg66
— Live Law (@LiveLawIndia) April 27, 2023
The five-judge bench asked Mr. Mehta how the government would deal with the problems that same-sex couples face, and among other things being ostracized in society. Mr. Mehta added that the government would work on the restrictions, and report back the same on 3 May 2023. Finding a loophole, SG Mehta said that the government would tackle the issues but not give same-sex couples legal status. Religious leaders in India too, are strongly opposed to the law coming into fruition.
Article 21 of the Constitution of India which deals with the Right to Life and Personal Liberty, guarantees the right to marry the person of one’s choice. The interpretation of this suggests that a man can marry another man and a woman can marry another woman, as the article says ‘person’ and ‘choice’. Same-sex marriage is still illegal in India, the verdict is to be announced by the Supreme Court in June of this year. India will become the 35th country in the world and the second country in Asia, after Taiwan on 24 May 2019, to legalize same-sex marriage, if the Apex Court rules in favour of those petitioning.
In a largely conservative country, most people who are a part of the LGBTQ+ community are afraid to come out of the closet, even to their friends and family. This ruling could forever change the way they are viewed in this country. However, what the law clearly states and how people interpret that law are two very different things.